The important and difficult issues in the al-Nashiri case: When did the war begin? And was the COLE bombing a war crime?

The tragic bombing of the USS COLE by al Qaeda operatives in October 2000 was a heinous crime. Even if it occurred as part of an armed conflict between the United States and al Qaeda (about which more below), the suicide bombers were not privileged belligerents, and therefore they would not enjoy any “combatant immunity” from being charged with crimes under U.S. domestic law. Accordingly, those responsible for the bombing could surely be tried in an Article III court for criminal offenses under Title 18 of the United States Code. The federal government, however, has chosen instead to use military commissions to try those responsible for the COLE bombing–charging them not with domestic law crimes, but with violations of the law of armed conflict. Here, for example, is the central charge in the pending military commission case against Abd al Rahim Hussayn Muhammad al Nashiri:

CHARGE I: VIOLATION OF 10 U.S.C. § 950t(17), USING TREACHERY OR PERFIDY Specification: In that Abd al Rahim Hussayn Muhammad a1 NASHIRI . . . , an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, invite the confidence and belief of one or more persons onboard USS COLE (DDG 67), including but not limited to then FN Raymond Mooney, USN, that two men dressed in civilian clothing, waving at the crewmembers onboard USS COLE (DDG 67), and operating a civilian boat, were entitled to protection under the law of war, and intending to betray that confidence and belief, did thereafter make use of that confidence and belief to detonate explosives hidden on said civilian boat alongside USS COLE (DDG 67), killing 17 Sailors of the United States Navy . . . and injuring one or more persons, all crewmembers onboard USS COLE . . . .

This charge raises at least two very important legal questions that must be addressed in the al Nashiri case: (1) When did the armed conflict between the United States and al Qaeda begin?; and (2) What constitutes an unlawful use of “perfidy” in a noninternational armed conflict?

When did the conflict begin?

The most important legal question in Al Nashiri is identifying when the armed conflict began–because if the COLE bombing occurred before the conflict began, then there is no jurisdiction to try al Nashiri in a military commission. It’s a difficult and complicated question that warrants more comprehensive treatment, perhaps in later posts. I’ll simply identify the crux of the issue here. The 2009 MCA provides (10 U.S.C. 950(p)(c)) that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” Section 948a(9) in turn provides that “[t]he term ‘hostilities’ means any conflict subject to the laws of war.”

Thus, as a matter of U.S. statutory law (and likely constitutional law, as well), al Nashiri can be tried and convicted of the charged offenses in a commission only if (at a minimum) they were committed in the context of, and associated with, an armed conflict subject to the laws of war. (Of course, if the bombing occurred outside of an armed conflict, that would not make it legal–it would only mean that it would have been solely a domestic law offense under Title 18 of the U.S. Code, which can be prosecuted in an Article III court.) [UPDATE: The new judge in al-Nashirireportedly just ruled that the government has (thus far) failed to come forward with evidence that the other alleged attack in the case–against the French tanker the MV LIMBURG in October 2002–was part of the armed conflict between the U.S. and al-Qaeda, which would mean that those charges could not be prosecuted in a military commission.]

By late 2001, after the bombings of September 11 and the U.S.’s subsequent invasion of Afghanistan, the U.S. and al Qaeda were engaged in an armed conflict. But the COLE bombing occurred a year earlier, on October 12, 2000. Was the armed conflict already underway then? The prosecution contends that it was. If its previous filings are any indication, the government will argue that the following five facts (assuming they are proved), considered cumulatively, established an armed conflict between the U.S. and al Qaeda as of no later than October 2000:

1. From August 1996 through May 1998, Osama bin Laden made various public statements “declaring war” against the U.S., vowing to use force to drive the U.S. out of Muslim countries, and issuing fatwas against the U.S.

2. In August 1998, al Qaeda bombed the U.S. embassies in Nairobi and Dar es Salaam, killing over 200 and injuring thousands.

3. A few days later, the U.S. struck terrorist camps in Afghanistan and a suspected chemical weapons factory in Sudan, asserting self-defense in response to the embassy bombings.

4. In January 2000, al Qaeda attempted an attack on the USS THE SULLIVANS near Aden.

and 5. In October 2000, al Qaeda attacked the USS COLE itself.

Does that set of facts, if proven, establish an armed conflict subject to the laws of war as of October 12, 2000? That’s the threshold question that must be addressed in al Nashiri. The case also raises important questions about who ought to make that determination–the judge? the commission panel members? a habeas court?; when it should be made–before trial or only after all the evidence is in?; and what legal standard must be applied to determine whether an armed conflict existed in October 2000.

When does feigning civilian status constitute unlawful perfidy?

As noted above, the basic charge in the al Nashiri case is that two men dressed in civilian clothing and “operating a civilian boat” waved at the crewmembers onboard the USS COLE just before detonating explosives that were designed to–and did–kill U.S. forces aboard the COLE. If proved, would that conduct violate the laws of armed conflict (assuming there was an armed conflict underway at the time)? The law of war does not prohibit ruses, or efforts to deceive the enemy. Nor is it unlawful to use stealth to prevent the enemy from detecting your presence before you strike. Accordingly, as far as the law of war is concerned, it is permissible, for example, to ambush the enemy, to wear camouflage, to use decoys, to transmit false messages, or to plant false information. What is not permissible is to engage in “perfidy.”

The difficulty, however, is in identifying the often subtle distinction between permissible ruses and impermissible perfidy. As the U.S. Army Field Manual on The Law of Land Warfareacknowledges, “[t]he line of demarcation between legitimate ruses and forbidden acts of perfidy is sometimes indistinct.” Perfidy is a particular type of deceit–namely, feigning a protected status under the laws of war in order to gain an advantage that empowers the deceiving party to attack the deceived party. The customary norm against perfidy has been codified, at least for purposes of international armed conflicts, in Article 37(1) of Protocol I to the Geneva Conventions:

It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

Article 37(1) then offers examples of what can constitute perfidious conduct, including the feigning of an intent to negotiate under a flag of truce or of a surrender; the feigning of an incapacitation by wounds or sickness; and, of most pertinence to the COLE case, “the feigning of civilian . . . status.” The al Nashiri case raises at least two important perfidy questions related to the “feigning of civilian status.”

First, what, exactly, is the scope of the norm against perfidy in a noninternational armed conflict, in which parties often do not, for example, wear uniforms or conspicuously distinguish themselves from the civilian population? As Dick Jackson writes in a recent essay, “[t]here is little or no evidence of perfidy violations being prosecuted under international law in non-international armed conflicts, nor is there clear opinio juris by States on this matter.” Therefore the scope of the norm in this sort of conflict is anything but well-established.

Second, even assuming that the customary norm reflected in Article 37(1) is fully applicable in noninternational conflicts, do the facts of the COLE bombing meet the test for perfidious killing? In a filing on a motion that was argued before the military judge last week, the prosecution appears to suggest that the key factual question for trial is simply whether the suicide bombers “feigned civilian status” when they pulled up alongside the COLE and waved just before detonation. I’m not sure that’s right. Indeed, there doesn’t appear to be much dispute that the bombers feigned civilian status (although al Nashiri’s lawyers appear to argue to the contrary). But proving a feigned civilian status would not be sufficient, standing alone, to establish an unlawful perfidious killing.

For example, if the bombers had used an unmarked boat (i.e., one that had no indicia of any military use) to sneak up on the COLE in the middle of the night, without detection, that might be viewed as “feigning” a civilian status, but it would not be unlawful perfidy. Moreover, according to the United States’ Commander’s Handbook on the Law of Naval Operations, it is even permissible, under the customary international law of naval warfare, for a belligerent warship “to fly false colors and disguise its outward appearance in other ways in order to deceive the enemy into believing the vessel is . . . other than a warship,” at least as long as the warship does not “go into action without first showing her true colors.”

As reflected in the referred charge in the al Nashiri case, quoted above, it will also be necessary for the prosecution to prove, at a minimum, (i) that the bombers intended to invite the confidence of the forces on the COLE to lead them to believe that the individuals on the small boat were protected civilians; and (ii) that the bombers “intend[ed] to betray that confidence,” i.e., to induce those on the COLE to let down their guard, in order to permit the bombers to detonate the device. Moreover, the prohibition in question is not on the use of “perfidy” simplicitur, but instead on killing an adversary “by resort to perfidy.”

Accordingly, in a recent comprehensive and very helpful article on the subject, Sean Watts suggests that there must also be proof (iii) that the harmed forces (here, the forces on the COLE) accepted the invitation, in the sense that they exercised forbearance in reliance upon the bombers’ feigned civilian status; and (iv) that the bombing occurred by virtue of the forbearance secured by the feigned civilian status, i.e, that the perfidy was the “proximate cause” of the killing. The charge in al Nashiri reflects this evidentiary requirement: It alleges–and presumably the prosecution will need to prove at trial–that the bombers “did thereafter make use of that confidence and belief to detonate explosives hidden on said civilian boat alongside USS COLE.”

It remains to be seen whether the government’s evidence in al Nashiri will be sufficient to prove each of these elements of perfidious killing beyond a reasonable doubt.

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About the Author(s)

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).